Personnel Essentials

1
Personnel Essentials

• Presented by
• V. Wayne Young
• Executive Director and General Counsel
• Kentucky Association of School Administrators
• February 2009

2
Legal Disclaimers

• In areas without a clear answer in statute or
  regulation, I will share with you my best
  INTERPRETATION. I could be wrong (not likely), or
  others could simply disagree, in which case they
  are wrong (more likely).
• Some of those same areas are addressed in local
  board policies, which may differ from my
  interpretation. Make certain you check!
• Get good advice, then make a decision you will be
  willing to explain and defend later.

3
Key Things to Remember re KRS 161.720

• A certified employee is an employee who holds a
  position for which the state of Kentucky requires
  a certificate (see KRS 161.020 and 161.011).
• All certified employees, with the exception of
  the superintendent, are teachers.
• An administrator is a teacher who devotes a
  majority of his or her time to service in one of
  the categories described in subsection (8). These
  are very broad.

4
Key Things to Remember re KRS 161.720

• The definitions of administrator and of a
  certified employee do not match. What is a
  certified employee who holds a classified
  administrative position?
• A classified employee cannot be an administrator
  under these definitions, and therefore has no
  demotion protection.
• A reduction in duties, or salary, or both, of an
  administrator, constitutes a demotion.
• Potential Pitfall! - subsection (6), as it
  applies under KRS 161.740

5
Key Things to Remember reKRS 161.740

• Continuing contract status (tenure) is a
  function of law it cannot be withheld if a
  teacher is entitled to it, and cannot be granted
  if he or she is not entitled to it.
• A teachers entitlement to tenure is fact based
  you must have an accurate employment history in
  order to be certain about a teachers contract
  status.
• Be aware of the four out of six rule, and the
  requirement to be currently employed.

6
Key Things to Remember re KRS 161.740 (contd)

• A year, for purposes of attaining tenure, is
  the equivalent of at least 140 six-hour days
  during a school year (note exceptions for
  military leave and service in the legislature).
• A teacher must assume his duties in the
  qualifying year in order to attain tenure.
• If your district does not already require the
  one-year probationary period, start doing so.
• Potential Pitfall! - subsections (1)(a) (d)

7
Key Things to Remember re KRS 161.750

• There is never any requirement to re-employ any
  limited contract teacher.
• All limited contracts are created equal.
• Nonrenewal of a limited contract need not be
  performance related. It can be for any reason
  that is not discriminatory or unconstitutional.
• Consider not including the grounds for
  nonrenewal in the letter of notification.
• Try to avoid sending nonrenewal notices to all
  limited contract teachers.

8
Key Things to Remember re KRS 161.750 (contd)

• If asked for grounds, be as specific and accurate
  as possible.
• If grounds are performance-based, reference
  specific incidents or deficiencies, rather than
  bad evaluation or doesnt meet district
  standards.
• Potential Pitfall! Evaluation appeals
• Potential Pitfall! meets/ doesnt meet
  standards add a disclaimer if you use this.

9
Key Things to Remember re KRS 161.750 (contd)

• The gap between May 15 and June 30 is a period
  in which notice of nonrenewal can be withdrawn
  without creating a vacancy.
• Disregard the urban legend of actually having
  to touch the teacher with the nonrenewal notice
  the statute says it must be presented.
• Potential pitfall! dont get squeezed by the
  short gap between May1 (SBDM allocation deadline)
  and May15.

10
Key Things to Remember re KRS 161.011

• Practically everything required of a local
  district relating to employment of classified
  employees is contained in this statute.
• Be careful not to over read this statute that
  is, to view it to require things of you that, in
  reality, it does not.
• This statute contains provisions for both
  nonrenewal and reduction-in-force (RIF) for
  classified employees for certified employees,
  the statutes are separate.

11
Key Things to Remember re KRS 161.011 (contd)

• There is never a requirement to re-employ any
  classified employee who has not completed four
  years of continuing active service.
• For classified employees, both part-time service
  and all types of leaves of absence count toward
  the calculation of the four-year threshold. This
  is different than for certified employees, where
  neither of these are included in the calculation.

12
Key Things to Remember re KRS 161.011 (contd)

• As with certified employees
• A decision to nonrenew a classified employee need
  not be performance-based
• Consider not including the reasons for nonrenewal
  in the notice letter
• If asked for reasons, be both specific and
  accurate
• Try to avoid sending nonrenewal notices to all
  sub 4-year classified employees.

13
Key Things to Remember re KRS 161.011 (contd)

• Classified employees who have more than 4 years
  of continuous active service may also be
  nonrenewed, but only for the reasons listed on
  subsection (7) of the statute.
• Any classified employee may be terminated for the
  reasons listed in subsection (7).
• Based on the Fankhauser case, it is wise to treat
  a nonrenewed 4-year plus employee the same as a
  terminated employee that is, afford the employee
  a due process hearing.

14
Key Things to Remember re KRS 161.011 (contd)

• The reasons for termination listed in subsection
  (7) follow those listed for certified employees
  in KRS 161.790, but add an additional category
  other reasonable grounds which are specifically
  contained in board policy.
• Two other reasonable grounds come immediately
  to mind changes in board or council staffing
  policies, and reduction or elimination of program
  offerings.

15
Key Things to Remember re KRS 161.011 (contd)

• This option may become important when deciding
  whether to nonrenew/terminate a classified
  employee as opposed to declaring a RIF (more on
  RIFs later).
• The key difference is that employees who are
  RIFd have a right of recall those who are
  nonrenewed or terminated do not.
• Potential Pitfall! this distinction involves
  some hair-splitting, and would require due
  process hearings for all affected employees.

16
Key Things to Remember re KRS 161.011 (contd)

• Potential Pitfall! dont outsmart yourself. The
  more a nonrenewal/termination of a 4-year plus
  classified employee appears to be based on a
  reason listed in subsection (8) rather than
  subsection (7), the more it looks like a RIF.
• Only the superintendent can declare a RIF, but a
  RIF is a RIF, even if you dont call it one (If
  it looks like a duck . . .).
• Potential Pitfall! - Dont try to manipulate the
  system. It will come back to haunt you.

17
Key Things to Remember re KRS 161.760

• Generally, reductions in salary affect the number
  of extended employment days, or extra service
  pay, or both.
• A salary reduction can only occur in two ways
  as part of a uniform plan affecting all teachers
  in the entire district or if there is a
  reduction of responsibilities.
• Pay attention to deadlines uniform (generally
  group) reductions require 45 days notice
  responsibility (generally individual)
  reductions require 90 days.

18
Key Things to Remember re KRS 161.760

• Failure to meet a deadline entitles the employee
  to the higher salary for one year.
• A uniform plan affecting all teachers in the
  entire district need not be any of those.
• To be uniform, a plan must affect similarly
  situated teachers or administrators similarly.
• Uniform days, , percentages of salary.
• All, entire those in a clearly distinct,
  reasonable, and identifiable category.
• A uniform plan may affect only one person.

19
Key Things to Remember re KRS 161.760

• A reduction of responsibility, accompanied by a
  reduction in salary, is not a demotion, unless
  the individual is an administrator. No hearing or
  other due process is required.
• Reasons for the reduction in salary must be
  given there is no requirement that reasons for
  the reduction of responsibility be given (but see
  KRS 161.765).
• Demotion of administrators and reduction of
  responsibility for teachers are within the sound
  discretion of the superintendent.

20
Key Things to Remember re KRS 161.760

• Employment of a teacher is employment in the
  district only there is no entitlement to a
  particular position or assignment.
• Assignment to an administrative position is
  always a one-year assignment, subject to either
  renewal or revocation. There is no property right
  or other entitlement.
• Some administrators are entitled to a review of
  their demotion by the board of education.

21
Key Things to Remember re KRS 161.765

• In order to be covered by the provisions of this
  statute, an administrator must have completed at
  least three consecutive years of service as an
  administrator in that district. It does not apply
  at the end of the third year of service.
• The service as an administrator need not be in
  the same position for all three years it must
  simply be service as an administrator in that
  district.

22
Key Things to Remember re KRS 161.765

• The statute requires four specific written
  notices two by the superintendent, two by the
  administrator with specific timelines.
• Failure to provide any one of the four notices
  terminates the demotion proceeding, in favor of
  the party to whom notice was to be given.
• Any superintendent who does not discuss a
  potential demotion with the board members in
  advance is working without a net.

23
Classified RIF KRS 161.011(8)

• A RIF of classified staff may be declared only by
  the superintendent, based on reduced funding or
  enrollment, changes in district or school
  boundaries, or other compelling reasons as
  determined by the superintendent.
• These reasons are far broader than the grounds
  which support a RIF of certified employees.
• A RIF only occurs when a 4-year plus classified
  employee cannot be placed.

24
Classified RIF KRS 161.011(8)

• The superintendent is entitled to take both
  seniority and qualifications into account equally
  when deciding which employees to RIF. Thus, a
  less senior, more qualified employee may be
  retained at the expense of a more senior, less
  qualified employee.
• In addition, an employee qualified for more than
  one job may need to be moved to a different
  category to avoid a RIF. All options must be
  considered.

25
Classified RIF KRS 161.011(8)

• Seniority is defined in Subsection (1) (b), and
  includes both part-time employment and any leaves
  of absence.
• Seniority is in the district, regardless of
  positions held, and is taken into account only
  when there is a RIF.
• A RIF may appear to occur on a school-by-school
  basis, but it is in reality and application a
  districtwide event.

26
Classified RIF KRS 161.011(8)

• The term qualifications is not defined, but
  would clearly include degrees, advanced or
  specialized training, licensure, ability to do
  multiple jobs, and maybe more. Use criteria you
  are willing to defend and explain.
• Classified employees who are RIFd have the right
  of recall in order of seniority.
• There is no specified time period at which the
  right of recall expires. Reasonable efforts to
  contact an employee entitled to recall should be
  sufficient for compliance.

27
Certified RIF KRS 161.800

• A certified RIF can only be declared by the
  superintendent.
• A certified RIF does not occur until a tenured
  teacher cannot be placed in the district.
• A certified RIF can only be based on decreased
  enrollment, suspension of schools, or changes in
  district boundaries.
• Decreased enrollment can be either in the
  district or in an identifiable program.

28
Certified RIF KRS 161.800

• Seniority means seniority in the district.
• A RIF may appear to occur on a school-by-school
  basis, but in reality and application it is a
  districtwide event.
• A continuing contract is a constitutionally
  protected property right that cannot be
  extinguished by the actions of a school council.
• All certifications held by a teacher must be
  considered before a RIF can occur.

29
Certified RIF KRS 161.800

• Administrators are teachers, and any whose
  positions are eliminated or who are demoted must
  be placed in the pool with all other teachers for
  ultimate placement.
• Transfers may be required in order to avoid a
  RIF, and can occur without the agreement of the
  council or principal.
• Dont forget invisible employees those on
  leave, disability retirement, or MOAs.

30
Certified RIF KRS 161.800

• In a RIF, it is possible that some limited
  contract teachers will remain employed while
  tenured teachers are suspended.
• It is permissible to reduce teachers from
  full-time to part-time to avoid a RIF (see KRS
  161.760 on salary reduction).
• RIFd teachers have a right recall in order of
  seniority.
• There are many opinions on this subject. Most
  will be wrong.

31
Loose Ends and Parting Words

• Extra duty pay is a function of regulation, 702
  KAR 3070, Section 3.
• Extra duties are typically attached to a
  position, and can be diminished or removed with
  little or no fanfare (other than compliance with
  KRS 161.760).
• Extra duties do not constitute a position or
  vacancy in and of themselves.

32
Loose Ends and Parting Words

• Avoid the temptation to pursue the path of least
  resistance and use one or more of these
  procedures in lieu of a more appropriate, albeit
  more difficult path. The words pretext and
  retaliation are not your friends.
• Resign yourself to the fact that, in the end,
  someone will be unhappy.